COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT
(MOSES LJ AND BURNTON J)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE SCOTT BAKER
| Paul Baxendale-Walker
|- and -
|The Law Society
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Timothy Dutton QC and Chloe Carpenter (instructed by Messrs. Russell Cooke) or the Respondent
Hearing dates : 20th February 2007
Crown Copyright ©
President of the Queen's Bench Division :
This is the judgment of the court.
(a) whether the Tribunal was functus officio once it had announced its order on 5 April 2005. This issue was not pursued before us.
(b) whether the penalty imposed by the Tribunal was wrong in principle, on the basis that it was excessive and disproportionate? (the sentence issue)
(c) whether the Tribunal erred in law when it ordered the Law Society to pay 30% of the appellant's costs of the disciplinary proceedings? (the costs issue)
"Re: Mr Nurkiman
We are pleased to confirm that Mr Nurkiman is known to this firm and has satisfied our identification requirements in relation to Money Laundering Regulations 1994. We are further pleased to confirm that he a person of integrity and good standing.
We nevertheless disclaim all and any responsibility for any loss or damage consequent upon any actions you may take."
"He had been dealing with a client, through another lawyer who apparently knew the client well, who was involved in a high value transaction and had been so involved for several months. Mr Nurkiman had responded to all requests made of him in a timely and proper manner. At the time and in the circumstances that presented themselves, namely the pressure from Mr Smyth and the knowledge that pensioners receipt of money depended on the document, he decided to proceed as he did".
"Mr Baxendale-Walker had no ground whatsoever for saying that Mr Nurkiman was a person of integrity or of good standing. In cross-examination, Mr Baxendale-Walker sought to explain the letter on the basis that he had worked with Mr X (Xavier) for six months on a project involving a significant financial transaction in which Mr Nurkiman was one of the principals. This does not seem to me to give any proper explanation for a letter by a solicitor, apparently in connection with money laundering regulations, which gave the impression and, in my judgment, was intended to give the impression that one or more people in the firm had met and dealt with Mr Nurkiman personally".
" (116) The Tribunal did not agree with Mr Baxendale-Walker that the letter of reference given on behalf of Mr N to a bank, which reference was both improper and unprofessional, comes at the lower end of the scale of professional misconduct. Members of the public and organizations such as banks are entitled to expect to be able to trust a solicitor to the ends of the earth.
(117) At the time when Mr Baxendale-Walker gave the reference he had been qualified for five years. The Tribunal rejected Mr Baxendale-Walker's submission that at the time when he wrote the reference he was young and inexperienced. Mr Baxendale-Walker held a solicitors' Practicing Certificate and was entitled to practice as a fully-fledged member of the profession and on his own account.
(118) People who are not qualified as solicitors are able to recognise that it is improper to give a reference on behalf of a person that they do not know. Solicitors know that they can only properly give references which are truthful in all respects. This inevitably precludes commenting on the attributes of a person who does not exist.
(119) The Tribunal was in no doubt that Mr Baxendale-Walker gave a false reference indicating that the person he referred to was a person of good standing when he neither knew nor had any opportunity to know whether that was accurate.
(120) Dishonesty had not been alleged against the Respondent in this respect and if it had been the Tribunal would have had no difficulty in making an order that Mr Baxendale-Walker be struck off the Roll of Solicitors. The Tribunal is further in no doubt that to write such a false reference was both improper and a serious breach of a solicitor's professional duty. In writing such a letter the Respondent had been at the very least extraordinarily reckless with regard to this professional duty.
(121) The Tribunal concluded that it must impose a sanction and that a suspension for three years would be both proportionate to the seriousness of the allegation and would provide a clear indication, both to members of the solicitors' profession and to members of the public, that such behaviour on the part of a solicitor is wholly unacceptable and would not be permitted to go unmarked even where dishonesty was not alleged."
The Sentence Issue
"Lawyers practising in this country …should discharge their professional duties with integrity probity and complete trustworthiness… A profession's most valuable asset is its collective reputation and the confidence which that inspires…the reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price".
"…On the hearing of any application or complaint made to the Tribunal under the Act, …The Tribunal shall have power to make such order as it may think fit, and any such order may in particular include provision for any of the following matters –
i) the payment by any party of costs or a contribution towards costs of such amount as the Tribunal may consider reasonable."
"Absent dishonesty or a lack of good faith, a costs order should not be made against such a regulator unless there is good reason to do so. That reason must be more than that the other party had succeeded. In considering an award of costs against a public regulator the court must consider on the one hand the financial prejudice to the particular complainant, weighed against the need to encourage public bodies to exercise their public function of making reasonable and sound decisions without fear of exposure to undue financial prejudice, if the decision is successfully challenged. "
"….put the matter too highly in favour of the regulator. Lord Bingham does not, as I understand him, suggest that there should be a presumption, one way or another; he simply makes clear that there are particular circumstances to bear in mind where a public body or a regulator is concerned".
"1. Section 64(1) confers a discretion on a magistrates' court to make such order as to costs as it thinks just and reasonable. That provision applies…. as to the party (if any) which pays them.
2. What the court will think just and reasonable will depend on all the relevant facts and circumstances of the case before the court. The court may think it just and reasonable that costs should follow the event, but need not think so in all cases covered by the subsection
3. Where a complainant has successfully challenged before justices an administrative decision made by police or regulatory authority acting honestly, reasonably, properly and on grounds that reasonably appear to be sound, in the exercise of its public duty, the court should consider, in addition to any other relevant fact or circumstances, both
i) the financial prejudice to the particular complainant in the particular circumstances is an order for costs is not made in his favour;
ii) the need to encourage public authorities to made and stand by honest, reasonable and apparently sound administrative decisions made in the public interest without fear of exposure to undue financial prejudice if the decision is successfully challenged"